A consultant paid more than $5,000 to present information about Measure M on Menlo Park's website first approached city officials with a plan to sway public opinion against the ballot initiative, former mayor Heyward Robinson said Monday.

Robinson, one of the organizers of the Measure M campaign, said an email dated March 2 by consultant Malcolm Smith -- a former Redwood City communications manager -- was among the documents he received Friday from the city pursuant to a Public Records Act request made in August.

In that email, Smith offered to "refute the issues raised by the initiative's sponsors, and gain a more positive public profile of [the city's] position on the [specific plan] ... ." Smith also outlined how he would use press releases, opinion pieces, letters to the editor and other methods to make the case against Measure M.

"I said, 'Whoa!' I was pretty shocked to see that email and what was being proposed," Robinson said.

Robinson stressed that he doesn't object to city staff hiring a consultant to create content for the city's website about Measure M's impact on the El Camino Real/Downtown Specific Plan. What he objects to is hiring someone willing to disseminate prejudicial information with government money.

Although the city didn't accept Smith's original proposal, "a lot of what's on the website is a defense of office (buildings) as a use," Robinson noted. "I don't think the city needs to be in the business of defending office as a use. I think at every opportunity where [Smith] and the city had the choice to present something in a neutral way, they chose the slant that would put office in the best light and put Measure M in the worst light."

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Moreover, the bias also showed up in the city's newsletter, Menlo Focus, he added.

If approved by voters, the initiative pushed by a grassroots group called Save Menlo will limit office space in individual developments to 100,000 square feet and total new office space to 240,820 square feet within the specific plan area. It also will redefine open spaces by excluding upper-level decks, balconies or rooftops, and require voters to approve any changes to office and other non-residential square footage allotments.

In a page on the website titled "Overview of the Measure's Intended Changes to the Specific Plan, and How the Specific Plan Currently Addresses Key Issues" Smith wrote: "The proposed measure would implement revisions by a simple public vote, without the deeper public process that is recognized as most constructive for such complicated planning programs."

City Manager Alex McIntyre said there's no anti-Measure M conspiracy at play.

He said that in February, the City Council listed improved communication with residents as one of its goals; as a result, staff solicited Smith's help to "tell the story" of the specific plan and initiative.

"We were trying to do it in a way that was educational and, by no means, advocating one way or the other," McIntyre said. "So we hired Malcolm and his first proposal, the one that Heyward picked up on in the public records request, was the one we rejected. And if you look at that proposal, it really is a full-on campaign. That was not our intent."

While Save Menlo members were out collecting voters' signatures to qualify the initiative for the Nov. 4 ballot, citizens began calling City Hall with questions that staff struggled to answer, McIntyre said. So Smith worked with the office of Greg Stepanicich, the attorney who was contracted to work on specific plan issues, to develop a site that people could be directed to.

When asked about an email in which Community Services Director Cherise Brandell inquired about the status of letters to the editor, which Smith had indicated should be "signed by supportive community members," McIntyre said, "It never happened. We killed that idea because it's inappropriate to have city funds being spent on letters to the editor."

He also clarified that council feedback was not sought because Smith's fees didn't "rise to that occasion." He explained that "for a couple thousand dollar contract, there was no reason why I would have necessarily contacted the mayor or council members to inform them of this. This was something we were doing not independent of the council, but on our own initiative."

But Robinson, who last week sent a letter to the San Mateo County Civil Grand Jury asking it to investigate Menlo Park's "impartiality and fairness related to [Measure M,] potential misuse of public funds, and failure to comply with public records requests," said he wasn't assuaged.

"Menlo Park tried to push the envelope and, personally, I think they crossed the line," he said.

Menlo Park paid a public relations consultant more than $5,000 to draft language for its website about Measure M — language that the initiatives supporters say is biased.

The consultant, Malcolm Smith, also proposed that the city draft talking points for City Council members, opinion pieces and letters to the editor. But those ideas were rejected because they went “too far,” City Manager Alex McIntyre told the Post yesterday.

“His work was mostly for the website. I’m not sure he did anything else. To my knowledge, he didn’t,” McIntyre said about Smith, who sent a proposal for communication services in March.

Supporters of Measure M. which proposes to limit the construction of new offices in the city’s El Camino Real-Downtown Specific Plan area, have said for months that the city’s overview of the initiative on the city’s website is biased and is meant to sway voters from approving it on tomorrow’s ballot.

The consultant’s work is proof that the city has not taken a neutral stance on the controversial ballot measure, said former Mayor Heyward Robinson, a leader of the Yes-on-M campaign.

“The city has bent over backward to appear neutral while at the same time messaging against Measure M,” Robinson said Smith sent a proposal for communications services to the city in early March and was cut his first check for $2,325 on April 28, according to city documents.

In his proposal, Smith said he could help the city inform the public about the “value and importance of continuing with the existing plan” adopted by council in 2012.

Proposal revealed through records request

The city released the consultant’s proposal and a series of emails between Smith and the city’s Senior Planner Thomas Rogers and Community Services Director Cherise Brandell on Oct. 30 to Robinson, who made a public records request for the information Aug. 29, Robinson told the Post yesterday.

Smith was the communications director for Redwood City for 12 years until 2013 but now contracts with that city for communications services.

Smith wrote in his proposal that talking points for council and staff, opinion pieces and letters to the editor should all be part of the city’s communication goals related to Measure M.

Smith said messages could be developed to refute the arguments the initiative’s backers are using to revise the Specific Plan.

Measure M is opposed by all five members of the current council.

Smith wrote in his proposal that a key message would be to highlight how Measure M “would set an economically chilling precedent for requiring a vote on future projects, dramatically slowing the pace of potential development and improvements.”

As far as the language on the city’s website, Robinson said much of it is skewed in favor of the Specific Plan and against the proposals of Measure M.

The initiative simply defines that private balconies cannot be counted as open space as the Specific Plan allows and caps a limit on the total amount of office space that can be built.

Unintendend ripple effects

“Open space that is calculated only at ground-level would likely affect the feasibility of some, if not all, developments, and could result in unintended ripple effects (e.g., if more ground-level area is required to be dedicated to landscaping, it may effectively encourage/require taller buildings),” Smith writes on the website.

Robinson said Smith, however, fails to recognize in his overview the potential benefits of ground-level open space such as less massing of buildings and larger public gathering areas.

Early last month, Menlo Park resident George Fisher asked that the city retract the Measure M language on the website.

Fisher previously served as a neighborhood representative to sit down with Stanford officials about their plans to build offices, housing and stores on El Camino before the council formed a subcommittee to negotiate with Stanford on the project.

Fisher says that Smith’s assertion on the website about how “all non-residential” uses have the same impact on the city is false.

“It’s a complete misstatement,” Fisher said.

Retail, office and hotels have different impacts, especially related to traffic, he said.

A city can make fair statements and educate the voter about the initiative but it hasn’t done so in the case of Measure M, said Fisher, a 40-year resident of the city.

Campaign finance filings with the FPPC indicate that over 50% of the money contributed to Council incumbents Kirsten Keith, Rich Cline, and Peter Ohtaki has come from development and/or real estate interests. In aggregate, the contributions exceed $20,000. The filings are below.

“A fundamental precept of this nation’s democratic electoral process is that the government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions. A principal danger feared by our country’s founders lay in the possibility that the holders of governmental authority would use official power improperly to perpetuate themselves, or their allies, in office....” California Supreme Court, Stanson v. Mott, 1976

Recently released emails from the City of Menlo Park indicate that the City almost certainly hired an outside consultant to run a publicly funded, coordinated public relations campaign against Menlo Park’s Measure M. The campaign appears to have been in operation since early March of 2014 and may have involved senior City staff members including the City Manager, members of the City Council, and members of the community who were identified as being “supportive”. The details on the information discovered are outlined below. These revelations, if true, call into question the integrity, judgment, and candor of senior City Staff, including the City Manager, as well as the overall fairness of the campaign to defeat Measure M.

On August 29, 2014 I filed a public records request (PRA) with the City of Menlo Park requesting documents and communications related to the City produced information concerning Measure M.

The City initially responded on September 23, 2014 with documents that were, for the most part, already in the public domain. There was nothing substantive in the response. Yesterday, October 31, 2014, I received a second DVD that contained additional emails that had not been previously known. Among them is a March 3, 2014 proposal from a PR consultant named Malcolm Smith for “Communications Services” related to the “potential ballot initiative to revise the approved Downtown Specific Plan”

Discovery of this proposal raises a number of questions, including:

Was Mr. Smith actually hired by the City of Menlo Park? Subsequent email correspondence between Malcolm Smith and city staff seem to indicate that he was[1]; his contract should be a public record.

If Mr. Smith was hired, what are terms of his contract? When was he hired? How long did he consult for the City? Is he still consulting? How much was he paid? Was he responding to a request for proposals or similar solicitation? Who was his point of contact at the City?

If Mr. Smith was hired, were the Mayor and other Council members aware that the City was using a consultant to create a PR campaign against Measure M? Did they in any way participate in the PR campaign against Measure M?

Which “supportive” community members were recruited by the City?

Did “supportive” community members review/edit/influence information on the City’s website, newsletter or other official communications?

What information was provided to “supportive” community members for speaking at City Council meetings, writing letters to the editor, and posting on Nextdoor and other social media sites?

What letters to the editor and opinion pieces did Mr. Smith and/or City staff ghostwrite? Who submitted these for publication?

What interaction did Mr. Smith, City staff, or City Council members have with reporters and editorial boards at the Almanac, Daily News, Daily Post, San Jose Mercury News, and Menlo-Atherton Patch?

What meetings were held between staff/Council members/City consultants and local school leaders, including the school board, PTOs, and education foundation members? When were these meetings held and who attended them?

What postings on the Almanac’s Town Square and Nextdoor were drafted/edited by Mr. Smith and/or City staff?

Did the City deliberately delay the release of these email records until the weekend before the November 4th election?

If the City did hire Mr. Smith and/or other consultants to run a PR campaign against Measure M, were any laws broken?

Mr. Smith's proposal of March 3, 2014 was well before the City Council meeting of March 18, 2014 where the Council authorized $165,000 for a report on the Initiative's potential impacts. Had Council members and staff already made up their minds about Measure M prior to Council's March 18, 2014 action to request an Impact Study of the Initiative? Does the $165,000 the City contracted with The Lisa Wise Consultants constitute a misuse of public funds?

The City of Menlo Park should provide answers to these questions as soon as possible. If the City has conducted a coordinated campaign against Measure M, the details and extent of the campaign need to be fully revealed. I have copied the San Mateo County District Attorney's office and the FPPC on this message as there may be California statutes and/or campaign finance laws that have been broken. I and other members of the public await a complete and through explanation from City staff and the Council.

[1]May 5, 2014, email from Cherise Brandell to Clay Curtin regarding the City’s Initiative Web page: “Clay, Have you had a chance to send Malcolm a link to the test pages or did we determine that isn't possible? I think he's ready to move forward with getting the initiative web page set up in anticipation of signature being turned in”; May 19, 2014 email from Malcolm Smith to City staff regarding a response to an anonymous Almanac Town Square posting; May 21, 2014 email from Malcolm Smith discussing talking points for City Council; August 2, 2014 email from Malcolm Smith to City staff regarding Daily News article on SaveMenlo’s response to the Lisa Wise Report.

Good question. Office buildings are filled with workers, and workers bring some economic lift to the community. Like other uses, office buildings generate property tax revenue. And office buildings and their employees should be part of the the mix of uses Downtown. But too much office is a problem.

An overabundance of commercial office will not result in the increased vitality that was forecast by the EIR and FIA. Moreover, concentrated, office dominated developments will be largely empty at night and on weekends - leading to a loss of vibrancy rather than the increase that was expected.

Most people who work in office buildings commute from out of town at rush-hour

Office workers commute to their jobs at rush hour, when Menlo Park’s traffic is at its worst. And ninety percent of employees who work in downtown Menlo Park don’t live in Menlo Park. 69% come from 280, 101, or Dumbarton Bridge (HWY 84). Another 21% come from Palo Alto or Redwood City/Atherton. 55% of retail trips, by comparison, are from Menlo Park residents shopping in downtown. The table illustrates the differences:

Too much office means too many cars on the road at rush-hour. And when traffic backs up on El Camino, Sand Hill Road, Middlefield and Willow Road, drivers start finding alternate routes through Menlo Park neighborhoods. Office commuters driving on narrow, residential streets is not something any resident is in favor of.

Excessive office has a negative impact on the City’s Budget

While all development generates property taxes in amounts roughy equal to the cost of construction, office buildings do not provide municipalities with any sales or transit-occupancy taxes (hotel taxes). The Specific Plan’s Financial Impact Report, based on a mix of office (51%), retail (19%) and hotel (30%) estimated that the full, thirty year build-out would result in a net increase in City revenue of $2,153,000, the vast majority being from hotel taxes. By comparison, a 100% office build-out would result in a net LOSS to the City’s budget of $282,000, as seen in the Scenario 3 (Low Bookend) column in the table below. Excessive office will lead to budget deficits, which will mean higher taxes and/or cuts in services. No one wants to see that.

Earlier this week, opponents of Measure M sent out an email with the title "Extraordinary Untruthful Information from the Yes on M campaign.” These are strong words. I’ll let you be the judge of whether they are merited.

In their email, Measure M opponents claim that I used drawings of Stanford University’s proposed plan’s for their 8.4 acre property at 500 El Camino Real that are more than a “year out-of-date” and that have "long since dropped by Stanford.” This implies of course that more recent, up-to-date plans would be more appealing to voters than the drawings that I shared, allaying any concerns voters might have over very large office buildings popping up on El Camino Real. Stanford’s most recent plans are from January 2013. The drawings in my email are taken from these plans. In April 2013, Stanford provided “updated drawings” of the building facades but no new plans. The drawings below show the differences.

The changes, according to Thomas Rogers from the Menlo Park Planning Department, were:

Warmer stone materials that would establish a 2-story visual element

Making the upper level resemble somewhat a roof screen

A lot more color/material variation, generally

The middle right building changes from a four stories to a three

Several large trees have also appeared in front of the buildings. But the overall size and mass of the office buildings, 199,000 SF, is the same. The new drawings don’t show where the area lost by removing the middle building’s fourth floor ends up. Overall, the changes are cosmetic and don’t affect the underlying fact these remain very large office buildings with only a token of retail space (<4%).

For comparison, Menlo Center, home of Cafe Barrone and Kepler’s Bookstore, has about 35% ground floor retail and 65% office, with a total floor area of about 61,000 SF on a lot that is 84,000 SF (for a floor to area ratio (FAR) of 0.73). Stanford’s FAR is 1.25 meaning that the 500 El Camino development will have 10.5 acres of floor space within the 8.4 acre property. Stanford is planning to construct a plaza near Middle Avenue (as required). But unlike Menlo Center, Stanford’s plaza will have a driveway through it.

To recap, Stanford’s most recent plans are from January 2013. The architecture was updated in April 2013. Nothing has changed since. Does my email rate the "Extraordinary Untruthful” label? Email me at heyward@savemenlo.org with your verdict.

Want to know what problems are caused by having too much office? Find the answers here.